Date: 19990427
Docket: IMM-3018-98
BETWEEN:
SONIA PATRICIA HOLDER
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of an immigration officer in which that officer determined that there were insufficient humanitarian and compassionate grounds for processing from within Canada the applicant"s application for permanent residence in Canada. The decision of the immigration officer is dated the 27th of May, 1998.
[2] The applicant is a native of Barbados. She and her oldest child came to Canada on a visitors visa in November of 1990 when the child was an infant. The visitors visa expired. The applicant and her child remained in Canada. The applicant now has three children, the latter two being Canadian-born. She lives with her mother, her three children and her partner who is the father of one of the Canadian-born children. She has five siblings in Canada all of whom are Canadian citizens. Her mother is landed in Canada. The applicant also has two siblings still in Barbados.
[3] The applicant, in a voluntary initiative to regularize her status in Canada, submitted an application for landing from within Canada. She was interviewed in connection with that application on the 21st of April, 1998. The immigration officer recorded the following remarks following the interview:
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After carefully reviewing all information brought to my attention at the interview and on file, it is my belief that this case does not warrant favourable consideration. In my opinion, Miss Holder has very minimal establishment in Canada. She has been in Canada since November 1990 and has never been employed, nor has she upgraded her skills. She is not, nor has she been self-supporting since her arrival in Canada. Miss Holder, her 3 children and her mother, have been dependant on her boyfriend, Mr. Junior Thompson, (the father of the second child) for support. She has also received Social Assistance from the Government from September 1996 to January 1997. Mr. Junior Thompson"s annual salary is $28,969.53. In my opinion, his income (according to the low income cut-off) is not sufficient to support a family of this size. Given the fact that Miss Holder"s mother has medical problems, I believe that her 5 siblings living in Canada will help to care of their mother. She stated that her siblings help with the payment of their mother"s Medical bills. Taking into consideration that Miss Holder has 3 children ages 8, 4 and 2 (the 2 and 4 year old are Canadian born), I have no doubt that these could be able to adapt overseas. She has concerns about where she would live if made to return to Barbados, because what she claims to be their family home, was "Bulldozed" in June 1997... . I do not consider this to be grounds for insufficient [sic] humanitarian and compassionate grounds to warrant processing from within Canada. I do not believe that there is evidence that undue or disproportionate hardship would result if Miss Holder and her children were to leave Canada and apply in the normal manner. [emphasis added] |
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[4] Counsel for the applicant urged that the immigration officer fettered her discretion by focussing only on the economic circumstances of the applicant, erred in "selectively" relying on the respondent"s guidelines for determination of applications for landing from within Canada on humanitarian and compassionate grounds, and that the finding that the applicant "...has very minimal establishment in Canada" was perverse.
[5] Against the remarks of the immigration officer quoted earlier, I have a good deal of sympathy for the position of the applicant. The applicant cares for her children and her mother who suffers from medical conditions that require the care and support of another person. It is reasonable to assume that both her children and her mother are dependent on her emotionally and socially. To conclude in such circumstances that the applicant has "very minimal establishment in Canada" is, in all the circumstances, difficult to understand. Establishment in Canada is not merely a matter of economics and engaging in what has been traditionally defined as "work" or "employment". The applicant could be said to be well established in Canada through the fact that others are now dependent upon her regardless of the fact that she does not earn an income. In addition, material on file discloses that the applicant does volunteer work in the community which could be regarded as further evidence of establishment.
[6] Given the length of time that the applicant has been in Canada, and all of her circumstances, the limited period of time during which she relied on social assistance could be seen to be a positive factor in her establishment rather than a negative factor. Further, the fact that she and her partner, her three children and her mother maintain themselves on her partner"s relatively limited income might also be seen to be an indicator of social responsibility rather than a negative factor.
[7] All of the foregoing being said, I am conscious that the burden on the applicant on an application such as this is a heavy one. In Shah v. Canada (Minister of Employment and Immigration)1 Mr. Justice Hugessen wrote at page 239 in respect of decisions such as this:
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The decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. ... |
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[8] In Vidal v. Canada (Minister of Employment & Immigration)2, Mr. Justice Strayer, as he then was, wrote at page 130:
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I would observe in passing that it must follow as a corollary of the reasoning of Jerome A.C.J. in Yhap that an applicant cannot complain if an immigration officer fails or refuses to follow the Minister"s guidelines. Nor can he complain if an immigration officer applies any factor in lieu of those in the guidelines as long as this is done in good faith and the factor is not wholly irrelevant to any conceivable view of humanitarian and compassionate consideration. Further, it is for the officer to decide if he is convinced of the truth of the applicant"s assertion, unless perhaps he makes findings of fact which are clearly without regard to any material before him. It is not for the Court to sit in appeal on his findings of fact or his weighing of the various factors. |
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Thus, the issue before the Court is not whether I would have reached the same decision as that reached by the immigration officer on the facts of this matter, but whether the decision reached by the immigration officer was reasonably open. With regret, I conclude it was and that the immigration officer made no reviewable error in reaching the purely discretionary decision that she did.
[9] For the foregoing reasons, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
_____________________________
Judge
Ottawa, Ontario
April 27, 1999
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1 (1994), 170 N.R. 238 (F.C.A.)
2 (1991), 13 Imm. L.R. (2d) 123 (F.C.T.D.).
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